State v. Johnson

• Decision Date: 28 November 1973
• Docket Number: No. 7326SC684,7326SC684
• Citation: 20 N.C.App. 53,200 S.E.2d 395
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. William James JOHNSON, Jr.

Page 395

200 S.E.2d 395

20 N.C.App. 53

STATE of North Carolina v. William James JOHNSON, Jr.

No. 7326SC684.

Court of Appeals of North Carolina.

Nov. 28, 1973 Appeal Dismissed by Supreme Court Feb. 5, 1974.

Atty. Gen. Robert Morgan, by Asst. Atty. Gen., Rafford E. Jones, Raleigh, for the State.

Hicks & Harris, by Richard F. Harris, III, Charlotte, for defendant appellant.

BALEY, Judge.

Defendant contends that there is a fatal variance between the indictment charging armed robbery of Betty Culp and the evidence which indicated that the money taken actually belonged to the Charlotte Housing Authority. In larceny cases it is important that the ownership of the stolen property be alleged and proved, State v. Jessup, 279 N.C. 108, 181 S.E.2d 594, but the criminal offense here charged is armed robbery.

In robbery cases under G.S. 14--87, '(t)he gist of the offense is not the taking, but taking by force or the putting in fear.' State v. Sawyer, 224 N.C. 61, 65, 29 S.E.2d 34, 37. Therefore an indictment for robbery need not specify the person who owned the property taken. A robbery indictment is sufficient if it shows that the property taken was the subject of larceny (See State v. Guffey, 265 N.C. 331, 144 S.E.2d 14) and that defendant was not taking his own property. State v. Spillars, 280 N.C. 341, 185 S.E.2d 881; State v. Rogers, 273 N.C. 208, 159 S.E.2d 525; State v. Lynch, 266 N.C. 584, 146 S.E.2d 677; State v. Sawyer, Supra. The indictment in the present case satisfies these criteria.

Defendant asserts that the trial court erred in admitting the identification testimony of Mrs. Culp and Mrs. Wrenick. The court properly held a voir dire hearing on this testimony. 'When the admissibility of in-court identification testimony is challenged on the ground it is tainted by out-of-court identification(s) made under constitutionally impermissible circumstances, the trial judge must take findings as to the background facts to determine whether the proffered testimony meets the tests of admissibility. When the facts so found are supported by competent evidence, they are conclusive on appellate courts.' State v. McVay, 277 N.C. 410, 417, 177 S.E.2d 874, 878; Accord, State v. Taylor, 280 N.C. 273, 185 S.E.2d 677; State v. Smith, 278 N.C. 476, 180 S.E.2d 7; 1 Stansbury, N.C. Evidence (Brandis rev.), § 57, at 176--77.

There is ample evidence to support the court's finding that the witnesses' in-court identification testimony was not tainted by the illegal lineup. Both Mrs. Culp and Mrs. Wrenick testified that defendant was in their office for at least fifteen minutes. During this time he engaged in conversation with each of them. Clearly, both witnesses had sufficient time to become familiar with defendant's appearance; they did not learn to recognize him for the first time at...